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One more post about federal land law use before a return to local law next week. The big domestic news this week was President Bush’s call for lifting the moratoria on drilling for oil off American shores (okay, it’s not really a federal land use issue, but a federal sea use issue). In light of current high gasoline prices, this was not unexpected, and neither was John McCain’s agreement. What was surprising, however, was the thumbs-up from Florida Governor’s Charlie Crist; one of the reasons for the moratoria has been that coastal states (whose citizens would share only a fraction of the benefits of offshore oil) have opposed drilling because they would bear the full risk of potential spills and other environmental harms. Now, I find persuasive the argument that offshore drilling probably wouldn’t affect supplies for many years, and would have only a minor effect on the world price for oil. However, let’s realize what our policies have meant. We have in effect said, “We want oil from around the world to feed our thirst, but we don’t want any of the dirty risks associated with its offshore extraction.” This is a win-win policy when the world price is low, but somewhat off kilter when it is not. It reminds me of local zoning laws that exclude unwanted land uses, such as landfills, sewage plants, and low-cost apartment housing. While the community needs all of these land uses (and even wealthy citizens need low-cost housing somewhere, if only to house their maids and firefighters), influential citizens don’t want any of these uses anywhere near them. And although I understand the argument that the oil reserves off American shores amount to only a fraction of the world’s demand, let’s not fool ourselves into believing that the environment takes precedence over gasoline for most Americans. If there were enough oil off Alaska and Florida to deflate rapidly the price of gasoline by a couple of dollars, the clamor to drill immediately (the risks of spills be damned) would be overwhelming …

Just as we Floridians begin to worry about the approach of another hurricane season, overflowing rivers in and around Iowa remind us that far more people are harmed by interior fresh water than by salt water. Both types of flooding raise the land use law question of whether government policies should try to discourage construction in risky areas –- the floodplains in Iowa and the coast in Florida -- and what form this discouragement should take. Ironically, risk aversion methods must take account of the policies of government-assisted flood insurance and disaster relief, which work to encourage residence (or at least dull the effect of discouragement policies) in flood-prone areas. How can law both protect people who are hit by disasters and at the same time encourage them to live so as to avoid risk?

Proposed solutions such as the complete removal of government-sponsored insurance are simply too glib; such an effort would most often harm the poor, and wouldn’t solve the problem of what to do about people who have relied on assurances that they would receive some protection from the government. And then there’s the problem of rapidly changing assessments of risk. Hurricanes in the South have increased in intensity in recent years, and once-in-a-century floods have now occurred twice in 25 years in the upper Mississippi basin.

One town that is getting a lot attention is little Chelsea, Iowa, which was seriously flooded in 1993, after which there were calls to move the entire town. Eventually, some but not most residents took government assistance to move to higher ground. Some who stayed behind are now regretting it, and it would seem easy to criticize those who didn’t act to anticipate another flood. But such a reaction would be too facile. Many Chelsea residents are coping with the flood, pumping out their basements, helping neighbors, and surviving with minimal government assistance, as this story explains.

If we truly are entering an age of heightened threats from floods, there are no silver-bullet land use law solutions to adaptation …